Supreme CourtNew South Wales

The application to file an amended defence is refused; the subpoena issued by the defendants to the NSW Police Service is set aside; defendants to pay the plaintiff’s costs of the applicationsCatchwords:CIVIL PROCEDURE – pleadings – application for leave to file an amended defence – where trial date fixed a year earlier – application brought late with little satisfactory explanation beyond the change of legal representation – weakness of proposed defences – risk of expanding hearing beyond current trial estimate

JUDGMENT EX TEMPORE – REVISED

HER HONOUR: These are proceedings for defamation arising out of the alleged publication of oral statements in a restaurant at a meeting of a section of the Liberal party. Two applications were argued last Friday. The first was an application by the plaintiff brought by Notice of Motion filed 31 October 2018 to have a subpoena issued at the request of the defendants set aside. The second was an application by the defendants for leave to file an amended defence.

It is appropriate to deal with the application to set aside the subpoena first. For that purpose, it is necessary to identify the issues in the proceedings.

The remarks on which the plaintiff sues are pleaded in paragraph 1 of the Statement of Claim as follows:

“First defendant: ‘He beats his wife. He has an AVO.’

Second defendant: ‘It is true, I saw it in the paper, he has a criminal record.’

First defendant: ‘Balzola is a criminal.’

First defendant: ‘Thank god Balzola is here, he can pull swifties.’

Second defendant: ‘Balzola beats his wife.’”

As observed by Mr Rasmussen, who appears for the plaintiff, the matter complained of consists of a collection of quotes; it seems unlikely that the conversation unfolded in those precise terms. However, the defendants have not taken any issue at the appropriate time as to the form of pleading of the publication and the present application must necessarily be determined by reference to the matter as pleaded.

The imputations pleaded by the plaintiff as arising from those remarks are:

“(a) The plaintiff is a criminal;

(b) The plaintiff has a criminal record;

(c) The plaintiff beats his wife;

(d) the plaintiff has an apprehended violence order against him;

(e1) the plaintiff can pull swifties meaning that he is a devious operator;

Or in the alternative to (e1);

(e2) The plaintiff can pull swifties meaning that he is capable of deceitful practices.”

The defence filed in response to the statement of claim denies publication and otherwise pleads no substantive defence.

The statement of claim includes a claim for aggravated damages based on the plaintiff’s knowledge of the falsity of the imputations. As that claim is not admitted, it follows that the falsity of the imputations is put in issue by the pleadings. It is established in those circumstances that the Court would have power to order discovery of documents relating to that issue: Tabe v Amalgamated Television Services Pty Limited (1987)A Def R 50-025. The same issue would equally support the issue of a subpoena seeking production of documents relating to that matter.

The critical question on the present application is whether the documents sought do relate to that matter. The schedule to the subpoena, issued to the New South Wales Police Service, seeks production of the following documents:

“Copies of all records relating to and/or concerning one Robert Balzola, including, (but not limited to):

Convictions

Arrests

Interviews

Call-outs

Reporting of occurrences

Incidents recorded.”

Curiously, the subpoena does not seek what might have been thought to be an obvious category of documents, namely, any record of an apprehended domestic violence order made against Mr Balzola.

The documents sought plainly have no relevance to the truth of imputations (e1) or (e2). The focus of argument related to imputations (a) to (d) set out above.

Mr Rasmussen accepted that the defendants would be entitled to have records of any convictions recorded against Mr Balzola. He submitted that the subpoena otherwise amounted to a fishing expedition and was liable to be set aside on that basis.

The principles concerning the Court’s authority to set aside a subpoena are well established and were not in issue on the present application. They were addressed at length in written submissions provided by Mr Rasmussen but it is enough for present purposes to refer to a single authority relied upon in those submissions being the decision of the Court of Appeal in ICAP Australia Pty Limited v BGC Partners (Australia) Pty Limited [2009] NSWCA 307 where the test was approved in the following terms at [9] (quoting the judge at first instance)

“At [30] his Honour stated the test in the following terms:

“[I]t must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.”

It is appropriate also to have regard to the further discussion at [22] of the judgment as follows:

“As to his Honour’s use of the expression “it must be shown that it is likely [that] the documentation will materially assist on an identified issue” and his alternative statement that there be a “reasonable basis beyond speculation that it is likely” the documentation will so assist, I do not regard his use of the word “likely” as being any different in the context of a case such as the present to the expression “on the cards” which finds its genesis in the judgment of Gibbs CJ in Alister at 414. The word “likely” has a number of different shades of meaning depending on the context in which it is used and in the present context I see no reason to regard his Honour’s use of the word as having any different meaning to the concept to which the Chief Justice was referring in Alister and which his Honour articulates at [27] of his judgment.”

Applying that test, in my assessment the present subpoena is too broad or else poorly framed and is liable to be struck out, save for the paragraph requesting any record of any conviction, as conceded by Mr Rasmussen. The likely relevance of any of the other categories sought to the truth of imputations (a) to (d) is otherwise entirely speculative. However, in my view, the defendants would also have been entitled to obtain any record of any apprehended violence order. Beyond those two categories, the categories of documents sought go beyond any issue raised by the plaintiff’s assertion that his harm was increased by his knowledge of the falsity of the precise imputations pleaded.

I should note a submission made by Mr Rasmussen resisting the subpoena on the basis that, in the defence, publication is denied, I do not think that pleading should preclude the defendants from obtaining documents directed to the falsity of the imputations. For the reasons explained in Tabe, that is an issue in the proceedings and one in respect of which the defendants are entitled to prepare for cross-examination of the plaintiff.

In the circumstances, a question arises as to the appropriate course in respect of documents which the Court was informed have already been produced in response to the subpoena. That occurred because the defendants failed to comply with their obligation under the rules to serve a copy of the subpoena before it was returnable; I infer the subpoena was then complied with before the plaintiff had an opportunity to file his notice of motion. That having occurred, however, it would seem sensible, in accordance with my obligation under the Civil Procedure Act 2005 (NSW), to truncate the process of requiring the defendants to issue a fresh subpoena seeking any record of any conviction and any record of any apprehended domestic violence order. I will hear parties as to why I should not take that course and grant first access to the plaintiff to inspect the documents to ascertain whether any document beyond the two categories I would permit is included within the envelope.

The second application is the defendants’ application for leave to file an amended defence. The application is brought in circumstances where, as noted by Mr Rasmussen, the original defence was filed over a year ago and the parties have had a hearing date for the matter allocated for at least a year, that date being in early December with an estimate of two days.

Presently, publication is in issue and otherwise the only issues for determination by the Court, neither party having elected trial by jury, are defamatory meaning and the assessment of damages. By reference to those issues, a two-day estimate is reasonable.

The proposed amended defence seeks to add a defence of qualified privilege and a defence of truth. The only explanation provided for seeking leave to amend at this late stage is that the solicitor on the record for the defendants has changed. A notice of appearance by the new solicitor was filed in late June. The proposed amended defence was foreshadowed only days before the hearing last Friday.

The proposed truth defence is weak. It seeks to justify imputation (d), which is that the plaintiff has an apprehended violence order, by reference to the following particulars:

“In about late 2006 or early 2007, the plaintiff was charged with assaulting on and between 8 and 9 November 2006 his wife Marlene Balzola, and was subject until about at least June 2007 to strict bail conditions that prohibited him from coming within 200m of his wife or contacting her and an interim apprehended violence order.”

The fact of being charged with a criminal offence is of course very different from being convicted of one and the existence of an interim apprehended violence order never determined on a final basis (according to these allegations) is very different from the existence of a present apprehended violence order, which is the imputation sought to be defended. In my view the particulars, if proved, would barely be capable of establishing the substantial truth of imputation (d).

The second defence sought to be added is a defence of qualified privilege at common law. In my assessment, based on the current particulars, that defence would also be weak. The particulars allege:

“(a) The words complained of are alleged to have been spoken on 29 March 2016 at the AGM held in the upstairs meeting room of the Dolicissmo Restaurant, 96-100 Ramsey Street, Haberfield, NSW.

(b) The plaintiff, first and second defendants were members of the Liberal Party.

(c) The first defendant was a member of the Summer Hill Electoral Conference who attended the AGM.

(d) The second defendant was the president of the Summer Hill Electoral Conference and the chair of the AGM.

(c) [sic] All attendees of the AGM were members of the Liberal Party and/or persons particularly interested in the Liberal Party internal politics and elections at the AGM.

(d) [sic] The plaintiff was not a member of the Summer Hill Electoral Conference, and attended the AGM with two persons who were also not members.

(e) The plaintiff attended the AGM to support candidates for election.

(f) All persons alleged to have received the matter complained of were attendees of the AGM.

(g) The defendants spoke words at the AGM, including any words part of the matter complained of they are found despite their denials to have spoken, for the information of attendees to the AGM.”

It is not clear to me why persons present at a meeting of the kind described in those particulars should be under a duty to provide information about the private domestic affairs of a person allegedly attending the meeting in the circumstances particularised.

To that consideration of the apparent weakness of each proposed amended defence may be added the considerations to which I am required to have regard under the Civil Procedure Act. The defence is brought very late with little explanation beyond the fact of a change of legal representation. The most compelling consideration against granting leave to amend at this stage is that, in my assessment, and contrary to Mr Dean’s careful submissions at the hearing last Friday, there is a real risk that the addition of these defences at this stage might take the matter beyond the current two-day estimate. That is a powerful consideration in the circumstances of the current listings of the Court where, as this case reveals, a plaintiff can wait a good year for a hearing date even with an estimate of only two days.

A separate consideration is the entitlement of a plaintiff to move towards a hearing date, when legal fees are being incurred, knowing the scope of the claim he has chosen to bring and being able to make appropriate decisions about settlement and preparation on the basis of the pleadings which have existed in their present form for such a long time.

For those reasons, the application for leave to file an amended defence is refused.

Her Honour heard the parties on the issue of a further subpoena and costs.)

The defendant is to pay the plaintiff’s costs of the argument last Friday.

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Richard Ferrara, right, of New York, holds a sign and the rainbow flag along with others during a Dignity USA demonstration Saturday, April 12, 2008 in New York, NY. Dignity USA, a Catholic gay rights group, held the demonstration across the street from the United Nations complex ahead of Pope Benedict XVI’s upcoming visit to the U.S. next week. (AP Photo/Craig Ruttle)